Question on Separation Agreement/Mobility Issue

[tombiosis]

I am new on here and could use some advice...
I have a separation agreement that clearly states: Neither party shall remove the child from his school district without written consent or a court order".
I have joint custody and my 4 year old son is with me 3 1/2 days per week. My ex has sent me a letter informing me she will be moving with her fiancee about 55km away, but she will keep our son in his current school, as per our agreement.
The problem?
I do not think it is appropriate to subject my son to an hour long drive just to get to his bus stop. And that is on a good day with no snow etc. Further, I foresee an issue with extra curricular activities; we will be arguing as to where he should be signed up for soccer etc.
I am told that if she has to get a court order, it will be granted, and I could be on the hook for costs! What about our signed agreement?
How come it apparently is not worth the paper it is written on?
I bought a house near her and our son's school so that I could be involved in his activities, no matter who he was with at the time...
Should I go to court on this?
t.

[logicalvelocity]

tombiosis,

welcome to the forum,

Mobility issues can swing either way are often difficult decision for the court.

I have a separation agreement that clearly states: Neither party shall remove the child from his school district without written consent or a court order".

Because the other party is moving, the onus is on them to vary the agreement. If unable to come to terms with you, they have the onus to proceed to court and seek the courts permission to relocate the child. However, mobility issues generally cause a material change of circumstance for the child and therefore you could bring forth a claim of sole custody. In your situation, they are agreeing to keep the child in the same school district so therefore a significant material change for the child will not be occurring

I have joint custody and my 4 year old son is with me 3 1/2 days per week. My ex has sent me a letter informing me she will be moving with her fiancee about 55km away, but she will keep our son in his current school, as per our agreement.

On one hand she is following the agreement as the child would continue in the same school. Since they are relocating out of the District, the primary residence of the child would be in your home. That may give you significant benefit if any other future pending moves are on the horizon for them.

The problem?

I do not think it is appropriate to subject my son to an hour long drive just to get to his bus stop. And that is on a good day with no snow etc. Further, I foresee an issue with extra curricular activities; we will be arguing as to where he should be signed up for soccer etc.

55km shouldn't take an hour to drive. I don't think the courts would see that as an issue. No matter where the child resides, there will always be snow days! The child could be scheduled up for any recreation events at both parent's locations and both parent's could commute the child to the event. Both parent's could also participate in the child's access travel regardless who is moving. To me that is the child centered approach. I know of parent's that travel the hwys for their children on the weekends for out of town hockey tournaments!

I am told that if she has to get a court order, it will be granted, and I could be on the hook for costs! What about our signed agreement?

I'm not sure who told you that but it appears an "absolute" to me. There is no guarantees in Family Law. The leading case authority on mobility issues is Gordon v. Goertz, [1996] 2 S.C.R. 27 which can be found here:

http://scc.lexum.umontreal.ca/en/199...96rcs2-27.html

Its a worthwhile read. There is a presumption that a successful party to an action is entitled to court costs but its not absolute. Any clause in your separation agreement can be varied by either party by way of the court if such change effects the child's best interest.

Such variance is a two stage process:

the party requesting the change first has to prove the material change of circumstance for the child and secondly has the onus to prove that the requested change is in the child's best interest.

How come it apparently is not worth the paper it is written on?

It is worth the paper it is written on, but the court always reserves the right to intervene and amend if necessary if anything effects the child's best interest.

I bought a house near her and our son's school so that I could be involved in his activities, no matter who he was with at the time...

The key word's in your statement is that your home will still be in the child's school district therefore the child is still allowed to attend the same school and therefore making your home the primary residence to the child! and further suggesting you will be the primary caregiver to same.

Should I go to court on this?

If it was me I wouldn't. 55 km is not far. To me you and your ex must see eye to eye in regards to your child. Litigation is expensive for both parent's and no doubt your child is benefiting for having BOTH parent's actively involved in their life in a meaningful way. You currently have a shared regime in place. Your child's school is not going to change. Keep in mind that you will be deemed to have the primary residence of the child and also primary caregiver by default of their move.

In all, you should speak to a lawyer for an hour or so to discuss your options.


Hope this helps

lv

[tombiosis]

Thank you very much for the reply lv!

I spoke to a lawyer and he advised me to try and work it out, which is what I did, despite my misgivings...I decided that court was a bad idea, and I would rather keep my limited $$ to spend on my boy!
Next week I will have to sign an ammendment that the ex has prepared, which reads:

The parties agree that "Jane Doe" is permitted to move to "anytown", Ontario with "superboy". Jane Doe agrees that superboy will continue to attend "School X" and the same caregiver. No changes to superboy's school will take place without written consent of both parties or Court Order. In the event of a dispute, the parties will follow the dispute resolution clause set out in paragraph 7 of the Agreement.
2. The parties agree that Jane Doe will be delivering superboy to Superdad's residence at 9:00 a.m. on Sundays and Jane Doe will pick him up on Wednesday at 4:00 p.m.

3. Jane Doe agrees to take superboy to any extracurricular activities in town when he is in her care. The parties agree that Saturdays will be designated for superboy's extra curricular activities in town. Superdad agrees to pay for all of the registration fees and associated expenses as jane Doe will have the driving expense to take superboy to the activity.

4. All remaining aspects of the Agreement between the parties dated *****, 2006 will remain in full force and effect.
So...what do you think...?
sounds OK to me, but I do worry what will happen when she gets sick of commuting. I can only hope she will uphold her end...

I am glad that I get the 'primary residence" designation you mentioned, and thus "primary care giver" by default. Do you think that could come in handy if I have future troubles? and are you sure that is so even though we still share 50/50?

The fact that it is so easy for her to alter our agreement just for her own relationship still bothers me! I still say a deal is a deal!

I really appreciate the help this forum provides and I will do my best to help another poster if I think I can!

Looking forward to your reply lv!
Thanks!
t

[logicalvelocity]

tombiosis,

The parties agree that "Jane Doe" is permitted to move to "anytown", Ontario with "superboy". Jane Doe agrees that superboy will continue to attend "School X" and the same caregiver.

I would strike out the term " and the same caregiver" from the amendment to the agreement because it implies that they are/were the primary caregiver before the move and will continue to be after the move.

Fact is; Once they move out of the school district by 55 Km, the child's main primary address would be yours. This is the only way the child will be able to attend the same school.

3. Jane Doe agrees to take superboy to any extracurricular activities in town when he is in her care. The parties agree that Saturdays will be designated for superboy's extra curricular activities in town. Superdad agrees to pay for all of the registration fees and associated expenses as jane Doe will have the driving expense to take superboy to the activity.

The costs of the recreation expense should be prorated to reflect each parent's respective salary. Some parents spend thousands of dollars each year on hockey equipment, skates, and fees to join leagues for their kids. Section 7 of the guidelines shares the said expense in a prorated fashion by default.


The choice is yours but I think you will pay significantly more in the long run especially if your child is enrolled in multiple activities, such as baseball, soccer, hockey, roller blade hockey, sports camp, skiing , ski's, summer camp, school trips; science camp; Basically the list is endless.

I am glad that I get the 'primary residence" designation you mentioned, and thus "primary care giver" by default. Do you think that could come in handy if I have future troubles? and are you sure that is so even though we still share 50/50?

I don't think you did get the primary caregiver status the way the amendment is worded. It implies that the move away parent is/are the current primary caregiver and will continue to be after the move with your child attending X school.

It should state the "superdad" is the primary caregiver of said child and the primary residence of your child will be at your home and address. If its not stated, your child may have to transfer schools to their new location! Get it specifically stated out and put in the amendment.

The fact that it is so easy for her to alter our agreement just for her own relationship still bothers me! I still say a deal is a deal!

It is good to be flexible and reasonable with the child's other parent especially when there is children involved. Its a two way street, some day you may require an amendment. Some day your child will thank you for the amicable settlement and not being caught in the middle between each of their parents.

hope this furthers you along the path to an amicable arrangement.


lv

[tombiosis]

thanks again lv!
I am a bit freaked out by your reply...How does the ammendment imply that she is primary caregiver?
We have been 50/50 since day one of the split, and she would never agree to me ammending the wording to have me listed as primary caregiver!
I definitely don't want her to be deemed "primary" as I have been, and continue to be, more involved with our son then she is.
I cannot see how she could transfer him to a school in her area?!
Now I am afraid to sign, and if I try to change it again she will blow her stack!!!
She is already complaining how much her lawyer charges for revisions, and so I told her we should make our own ammendments, then she can take it in for review by her council.
Sad thing is, it is very difficult to talk to one another civilly, but I am trying.

[logicalvelocity]

tombiosis,

Even in shared custody situations, the child has to still have a primary residence or a primary caregiver.

For instance; the child would not have two address''s listed for OHIP purposes. The child would not list two different address's on medical information.

In regards to CCRA, they would require that one of the parent's be listed at the "primary residence" to determine which parent collects CTB, GST and Universal Daycare benefit for that child.

Whichever parent's address is listed as primary residence, they would be considered primary caregiver!

As I mentioned, for school purposes, the child could continue to attend the school in the same jurisdiction. However, if the child is listed under the mother's new address, they will not be allowed to attend the same school and will have to attend a new school in their mother's jurisdiction 55km away. It may even be a different school board. This rules basically are determined by the individual school board directives which are under the authority of the Education Act.

One easy solution is to strike or omit the phrase "and the same caregiver" from the paragraph. It is rather ambiguous to begin with.

When I read it, to me, it meant and referred to the other parent:

Firstly, by the word "same" implying that they are or were before the move the primary caregiver to the child; and,

Secondly, after the move they will continue to be the primary caregiver notwithstanding the fact that the child will be attending the status quo named school.

Easiest way to correct is to omit "and the same caregiver" from the clause.

I cannot see how she could transfer him to a school in her area?!

If you agree to it as is without the omission "and same caregiver" your basically agreeing that they are the same caregiver! Which implies past and present. If that is the case and the existing school gets wind of the change of address, they may force the child to attend a school in the other jurisdiction 55km away.

lv

[tombiosis]

OK...now I see what you mean. I realize also why you are saying it is ambiguous...
The phrase "and the same caregiver" actually refers to our daycare lady, who cares for our son before and after school. We agreed to have his bus stop in front of her house, to minimize confusion. We both drive him to her house on our respective days to catch the bus.
I will definitely be striking that out before signing! I don't see why her lawyer would even mention our daycare lady in our agreement. What if we decide to change daycare ladies or whatever....!ambiguous for sure.
One final question for you.
When we separated, I agreed that she could claim the CTB, but we split the daycare supplement 50/50. I don't think she qualifies for GST, and I know I certainly don't. If her address is on OHIP forms or she claims CTB, does that automatically make her the primary care giver???
I don't care about the child tax benefit, I just need to ensure that my son will stay in the school near my home! I can't imagine having to move again!
How can I ensure my son will still qualify to attend his same school?
Thanks, and I hope all these Q's aren't annoying you too much!

[logicalvelocity]

tombiosis,

The phrase "and the same caregiver" actually refers to our daycare lady, who cares for our son before and after school. We agreed to have his bus stop in front of her house, to minimize confusion. We both drive him to her house on our respective days to catch the bus.
I will definitely be striking that out before signing! I don't see why her lawyer would even mention our daycare lady in our agreement. What if we decide to change daycare ladies or whatever....!ambiguous for sure.

If you don't omit "and the same caregiver" you could always insert the respective caregivers name in lieu. However, as you mentioned already; what if the individual is changed or something happened that they could no longer care for your child.

When we separated, I agreed that she could claim the CTB, but we split the daycare supplement 50/50. I don't think she qualifies for GST, and I know I certainly don't. If her address is on OHIP forms or she claims CTB, does that automatically make her the primary care giver???

Is that in your agreement?

By her collecting the CTB for your child solely could infer that they may have the primary residence of your child in CCRA eyes. However, the courts may see it differently and would look at the actual periods of time that your child is spending with each parent.

It can be noted that the CTB can be shared between parents such as paid six months to one parent and paid six months to the other.

The other significant tax deduction to remember is which parent claims Line 305 tax return amount known as "eligible dependant" or use to be known as "equivalent to spouse amount." This credit could also alternate between the households on a yearly basis as long as the specified CCRA criteria is met.

These are relevant issues that you should discuss openly with the other parent since it appears they will be living with a third party and as such CTB is based on household income. Therefore, the other parent will have to include the third parties income once they live together for a period of one year. The amount they currently receive for the CTB would be drastically reduced and for that reason it may to greater benefit to all concerned if you collected the CTB. Without having numbers, it is difficult to suggest which route to go. You have to do the math to cover all the scenarios.

I don't care about the child tax benefit, I just need to ensure that my son will stay in the school near my home! I can't imagine having to move again!
How can I ensure my son will still qualify to attend his same school?

If you have specified clauses the your child will attend a specified school then its logical to conclude that for all purposes related to school, the child's official address will be your own to ensure that the child will continue to be eligible to attend such school. You could add a clause with wording to a similar effect. If you speak to the other parent, they may see your viewpoint of the school jurisdiction. Remember that a third party such as a school board cannot be bound to the terms of a separation agreement and have their own rules, directives and the Education Act to follow.

Thanks, and I hope all these Q's aren't annoying you too much!

Your welcome, Your questions are excellent and definitely not annoying but are good topics for discussions.

lv

[tombiosis]

to answer your question lv: Yes, it is in our agreement that she get the CTB and the equivalent to spouse deduction, but we split the daycare supplement 50/50. (She receives the 100$ a month and pays me 50$)
I decided to let her have those benefits in order to get the schedule I wanted, (Sun. through Wed) because of my career; (I cannot do week on week off). You are right though, it would be wise to do the math now that she is getting married, but I know if I brought it up her head would likely explode! haha! 2 pairs of kid gloves required.

I think I will call my son's school before signing the ammendment, just to make sure they will still admit my son even if she is listed as his main address with CCRA.

As others have mentioned, LV, your answers are thorough, sage and candid and clearly very much appreciated, so thank you again. I don't know where you find the time!